NY Supreme Court Considers SAFE Act Injunction

This just in at TTAG command central: the New York Supreme Court has stated that they will issue an injunction against the new SAFE Act on April 29th—unless the state can prove that the law is constitutional. This puts the burden of proof on the state of New York to show the Act is legal under the newly re-affirmed provisions of the Second Amendment, which is impossible. From WKTV . . .

The Buffalo-based attorney who is spear-heading a lawsuit against Governor Andrew Cuomo’s recent gun laws said that Wednesday was “monumental,” as a State Supreme Court Justice issued an order requiring New York State to show good cause that the law is constitutional.

New York State has until April 29 to respond or else an injunction will be issued.

Bear in mind that the U.S. Supreme Court recently ruled that firearms “in common usage” cannot be restricted. And since the NY SAFE Act’s entire purpose is to restrict ownership of the single most popular firearm in the United States, there’s no way they can make a case that their law complies with the Second Amendment. If this injunction is upheld, then it opens the door for New Yorkers to challenge the standing “assault weapons” ban and other gun laws as well.

You are dreaming DuDE, I used to work for ny city sanitation,
I was hurt 3 times , 9 years 5 lawsuits and the apeallit court decided all injuries were different.
Each time they were worsened till they discs destroyed themselves.
Yet no cigar, yet I know nycity popo who got off cause they broke dat ity bity trigger finger they never used , cannot hit what they aim at and could care less, BUT dey gots a BIG pension.
Yea I am slightly pissed and bitter but hey , it is all coming down.
So their checks will run out too.

Count on your own Right Hand , GOD and your family I hope, all else is dreams and maybe a few friends.

Now, was she just a pretty girl in high school with you at the time, or was she already a star on baywatch, and you were just some 18 year old still in school? If it’s the latter, you, sir, have more nerve than anyone i’ve ever heard of.

We shouldn’t get too excited about this. This is just NY’s chance to lay out their case for the constitutionality of their measures. If the current Chicago climate is any indication, be prepared for plenty of citations to Heller’s language that the 2nd isn’t unlimited (it is in every amendment to the CCW bills that are being discussed in IL). It doesn’t mean that the court will go along with our favored interpretation of the issue.

Another very important distinction to note: in the state of New York, the supreme court is merely the lowest level trial court. The NY Court of Appeals is the highest court in that land. This is good, but it is just the beginning.

All true, but a very good beginning. It will be hard for the Idiots of Albany to overcome the Heller decision which is why they rammed this through at 3:00 AM in the first place. The pushers of this bill might be relieved anyway, since with all the blowback they’ve been getting it will get this monkey off their back. Hey Bob, you beat me to it – great minds think alike.

Exactly – Cuomo can appeal this rather extraordinary injunction up two more state court levels, and he absolutely will try. Without commenting on the merits of the SAFE Act, this injunction is a pretty extraordinary rememdy. Finding one sympathetic trial court judge is one thing – making it stick up through the New York Court of Appeals is another.

The Dick Act of 1902, otherwise known as ‘The Efficiency f the Militia HR 11654,, clearly re-stated for all time that ANY RESTRICTION OF ARTICLE 2, USC BILL OF RIGHTS is unconstitutional and this law passed by Congress cannot be repealed or amended… Google it for the low down…

“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”

That’s it. That’s all Justice Scalia had to say about permissible infringements of the 2A. Noticeably missing from these examples are restriction on the TYPE of firearm you’re allowed to possess. In fact, in the next paragraph, Justice Scalia cited to Miller, which as someone else pointed out, held that the 2A protects weapons in common use at the time.

All of this is to say that, without the benefit of the media’s filter, it will be interesting to see exactly how it is that the Gun-Grabbers believe the SAFE Act doesn’t violate the 2A. Anyone care to bet that point #1 will be that an AR is a “dangerous and unusual” weapon?

I agree completely.The local Liberal courts can squirm all they want but the Big Bazooka is looming over them. With all due respect to the legal eagles among us who urge leaving it to the “experts”, I can only say that both the Heller and McDonald cases were brought by “amateurs” against the advice of the pros and New Yorkers have been suffering under the Sullivan Law for over a hundred years with the “white shoes” not doing much about it.

i hate to rain on everyones parade, but this isnt actually as big a deal as it sounds. NY has a screwed up naming convention for its courts and the supreme court of NY is actually the lowest level of the state court system. the high ranking judicial body that most states and the feds call a supreme court is actually called the court of appeals here.

and in the eyes of a liberal NY judge the constitutionality question is far from a sure thing in our favor,if anything closer to the opposite. look at the kachalsky rulings, they acknowledge heller, but then apply a very weak standard of review, so in effect they say “sure, that gun is protected by the 2nd amendment, but it can be regulated so long as the state has a rational basis”

and “rational basis” here is extremely loose, basically meaning any argument a lawyer can articulate with a straight face.

it sucks, its the same system they have used to take our property rights away, but the scotus has made the bed and now we have to lay in it.

Well, it is not as dire as all that. This case was filed in Erie County (Buffalo), in a conservative part of the state for the purpose of avoiding the liberal judges in Albany and NYC. Also, Kachalsky was a decision of the Federal Court of Appeals, while this case was brought in a state court which is not bound by the decisions of the 2d Circuit.

The real problem is that no one really loses if the SAFE Act is struck down. The lawmakers that supported it still get to say that they voted for strong gun laws in a state where their constituents believe that is a good thing. No one will be impeached. No one will be censured. The bad guys who created and promoted this unconstitutional and poorly-written piece of crap will continue on as if nothing happened, and their state will continue suffering under their evil leadership.

One look at the new Democrat super majority in the CA State Senate and State Assembly and the clutch of new restrictions they are pushing attests to how this fight will never end.

The gun grabbers will continue to push these restrictions whether or not they are constitutional. They know that they will loose in the court but they don’t care. If they toss out enough 5h1t, they know sooner or later some of it will stick.

The real problem is that no one really loses if the SAFE Act is struck down. The lawmakers that supported it still get to say that they voted for strong gun laws in a state where their constituents believe that is a good thing. No one will be impeached. No one will be censured. The bad guys who created and promoted this unconstitutional and poorly-written piece of crap will continue on as if nothing happened, and their state will continue suffering under their evil leadership.

Good, but who cares. I have already told the Local guys I know including NY State, Suffolk count cops and the local good Sheriffs that I care about since they no longer follow any laws and continue to destroy my sovereign republic. I will no longer follow any of theirs.

Enough Infringement, yet they keep spending us to oblivion till the food and medicine and utilities run out.
They exempt themselves from all so shall We.

Sorry to break it to you, but this is meaningless. An order to show cause is standard fair in New York. Although it sounds like the burden is on the State, it is not. The language is just legalize. Also, an order to show cause is always issued. A victory at this point would have been a TRO pending a hearing on the motion for a preliminary injunction. The lack of a TRO is a bad sign.

Also, not to be an elitist ass, but top notch constitutional lawyers are not based out of Buffallo. These types of cases need to be meticulously planned and litigated. A bad argument that leads to bad precedent must be avoided at all costs.

Attorneys looking to make a name for themselves need to back off and let the 2nd Amendment Foundation take the reigns. They have already shown that they know how to get the job done.

I’m an attorney licensed to practice in MD, NY, and FL. After law school, I worked for two years as a federal law clerk. Since then I’ve been practicing complex commercial litigation, first in NY, then in South FL.

Whether or not “top-notch constitutional lawyers” are based out of Buffalo, they can travel rather easily. And/or submit amicus briefs. What may be more important here is that it might have been easier to find an honest judge in Buffalo rather than in say, NYC or Albany. I.e., a judge not worried about Bloomberg money being used against him.

The article says the attorney was based out of Buffalo. That’s where I got that from.

The problem here is that neither the NY Court of Appeals (highest state court) nor the 2nd Circuit Court of Appeals (the federal appellate court) will ever overturn the NY Safe Act on 2nd Amendment grounds. We have absolutely zero chance. Moreover, the US Supreme Court typically doesn’t agree to review a case unless there is a split in the circuits. This means that a 2nd Amendment challenge will most likely result in bad precedent.

The better bet is probably to challenge the law for violating the three-day waiting period required before a vote is held on legislation. That has a much better chance of success. If that works, we win. If it doesn’t work, then we could still bring a new case on 2A grounds and hope the U.S. Supreme Court agrees to review. This approach is similar to how that CA ammo law was challenged and overturned. It wasn’t on 2A grounds, but on a state procedural technicality.

Like I said I don’t care about you spelling, you seem well versed in the procedures. I agree. This is not a case for the b team. Send in the SAF. I have more faith in them than anyone else when it comes to the legal stuff.

I can only imagine SCOTUS ever declaring AR-15 to be a Constitutionally protected firearm, and I wonder how likely even that would be. But what about the 7-round limit? Can one argue that it is low enough to impede self-defense with a handgun, which is an activity explicitly affirmed in the Heller and McDonald cases?

The suit is over the process itself by ignoring the NY constitution by using the Method of Necessity to bypass the waiting period. The Buffalo lawyer filed in conservative Saratoga county far from Buffalo. Its actually a very smart suit. It attacks method instead of substance leaving doors open to filing on the content.

Your legal anaylsis is correct; this is nothing to cheer about. But whether or not there is competent counsel in Buffalo is a question yet to be determined. “Things have been quiet for the past few days since attorneys have traveled in from as far away as Chicago, Boston, New York City and Washington to assist with the planning of the class action lawsuit (titled Richard Dywinski and David Lefkowitz v. State of New York, et. al.).” Further, all though I cannot locate the pleadings yet, it does not appear that they sought a TRO. But they did file in Erie County, which is conservative, and a re seeking a preliminary injunction pending jury trial. The hearing on the prelim will be April 29.

You are right about Buffalo counsel. There are good attorneys everywhere, and he could be great. But, all of this litigation is being coordinated on a national scale. For example, there is a reason that a challenge to “may issue” carry was brought in MD, which is in the conservative 4th Circuit, and brought in NY, which is in the liberal 2nd Circuit. It was done to create a split in appellate decisions to encourage Supreme Court review. There hasn’t, however, been a challenge in other “may issue” state (as far as I know) because that would just lead to more bad precedent (we only need to lose one circuit case to get the split for Supreme Court review). Anyone who files their own challenge risks messing with the greater plan.

Mark, if you find the pleadings, please pass them on. I’d love to read them.

Sorry to spam you guys, but on further investigation, this attorney, while well-intentioned, has no idea what he is doing.

For those interested, the case number is in Erie County 13-000290. You can track the case on New York’s eTrack system. For you NY lawyers out there, he brought this as an Art 78 against the State of NY, which is clearly improper. Also, from a google search, it looks like he’s been trying to organize people for a class action. This makes no sense. Class actions are for when there are damages. They are never used when you are just trying to overturn an unconstitutional law. Sorry to say, but this guy is in way over his head.

If this lawsuit is the one from James Tresmond, we are in trouble. I am from Buffalo, and heard Tresmond on the radio here a couple weeks ago. He sounded like he was intoxicated, literally every other word was “um”, and he stated that the lawsuit was about “two people he knows who believe their Remington 870 will now be classified as an assault weapon”. That’s it…

So this random lawyer from Hamburg NY, with no online presence, no experience with constitutional law, and no experience with 2A cases wanted to make a name for himself by filing the first lawsuit. I have heard that SCOPE and other pro-2A groups tried to get him to join their legal coalition and do this thing the right way and he refused.

All I could find about this guy before he became famous for this law suit was a $10,000 donation to his teenage relative that ran for state assembly as a democrat.

I have a feeling this lawyer is really going to screw this up, and it almost seems like he wants to.

The other good news is this may slow the other states thinking about this kind of garbage. We need a SCOTUS win on this to flush this nonsense once and for all. Will we get one? Who knows, but a man can dream, cant’ he?

Just FYI, the Supreme Court of NY is the LOWEST court. Not that it matters, but I don’t want people thinking that this is some big deal. The Supreme Court is the Trial Court in NY State, and it would be where an injunction would get issued. If the state appealed the injunction, they’d do so to the Supreme Court Appellate Division, and ultimately to the Court of Appeals (the highest court in NY).

Maybe the threat of boycotting every thing New Yawkish nation wide had some influence on some rational beings some where in Neew Yawk maybe they are afraid of loosing their businessI know of hundreds who vowed to only buy products made in Illion NY by Remington and nothing else grown, made or imported thru New Yawk.

That is a harder argument than you’d think. Generally speaking, if the government “takes” your property (as that term is defined by 5th Amendment precedent) it has to compensate you for the loss. The question is whether there was a “taking.”

Here, you only thing you’d have to get rid of is 10+ magazines. The law, however, doesn’t make you turn them in. You can sell them out of state, would get you some compensation. Of course, the problem here is that pre-1994 10+ mags were worth a premium (capped supply, high demand). Outside of NY, however, an 18-year-old, used USGI mag isn’t worth squat. Consequently, the moment the law passed, the value of all NY pre-ban 10+ mags fell dramatically.

That loss is probably not a “taking.” Laws constantly change the value of things, and it is simply not enough for citizens to be negatively affected before the 5th Amendment kicks in. For example, let’s say that Congresses decided to repeal the NFA. That would mean the $18,000, used M-16 you purchased would now be worth a tiny fraction of what it was once worth (who would want that worn out thing when you can have a shiny new one for not much more than a standard AR-15). While that would suck for you, I think that it is pretty clear that there hasn’t been a taking. The same economic process is at play here.

On a slightly different note, I’ve seen a lot of people claim that this is an ex post facto law. It is not. An ex post facto law criminalizes prior conduct that already occurred back when that conduct was legal. For example, if the law said that anyone who owned (past tense) a 10+ magazine any time after 1994 has committed a felony, then that law would be an ex post facto law. The act in question had been done, so there be no way to avoid being a criminal. The NY Safe Act make possession of these mags a crime going forward, which is okay.

One major correction. Under SAFE, anything greater than 7 rounds is banned–and that applies to pistols as well as to rifles. So not only do you have to sell (if you can) your old mags, but you cannot use your pistol after the one year transpires unless you can find a smaller capacity replacement mag. For 1911s, no problem, same for subcompacts. But after that it is going to be a problem finding legal replacements. Rhtorically speaking, isn’t one damaged if one’s firearm is rendered inoperable and inutile by the law?

Going forward, you won’t be able to purchase new mags that hold more than 7 rounds. 10-round mags that you already own are grandfathered in. Mags greater than 10 must be sold out of state or turned in. You cannot, however, load more than 7 rounds in a grandfathered 10 round mag.

Just an FYI, this is NOT the Dywinski and Lefkowitz v. State of New York case. Talking with the spokesman for the legal team this is yet another suit which i Believe is Holt v NY. Mr Holt is a FFL who sells AR-15’s primarily and has his business destroyed by this law. the Tresmond’s are attacking on multiple front’s. They have a Diverse legal team from many states assisting.

I am a NY ker with tons of guns. I HOPE this works. There is so much that can go wrong since this rediculousness is already in place. My Town clerk is already doing background checks for transfers, so it will be a real s%$t storm if the law gets over turned or ajdusted,until then I wont register or get rid of my giant box of 30 rd mags.

Thank you for your work. We should file a class action on behalf of all gun owners and all owners of 30 round mags. Those who comply are being forced to sell at a loss because we were forced to buy an undesirable product at a premium. Now we are being told we must sell when there is no market for our over priced and unwanted items.

Hello Everyone,
To my under standing god for bid if this law stands . I am currently going through the process of getting my Permit . It’s at the Sherrif’s as we speak . It has been 8 months now . As the law stands today (NY SAFE) and a i also asked a NRA member this . If my father purchases a Rugar SR9C before (April 15 2013) he can keep the 10 roun magazies but only can have 7 rounds in it (Unless you are at a Shooting Range) then you can have the full 10. Once i receive my permit to my understanding my father can transfer this pistol to me with out a FFL because we are immediate family is this correct? can anyone answer this question? I fully disagree with this law . O’Bama and Cuomo are slowly stripping and tearing up our god for biddin rights in THE CONSTITUTION. This should be over turned and the who the hell is going to vote for Cuomo to be the next president . there is no chance for him to win now .This was a really bad move by our GOV . or should i say (STUPID). All you are doing is creating Chaos!!!!This bill not only distroy our Rights but will put ppl out of Business . I thought the whole idea was to support the small Businesses not take them out .This is wrong, unconstitutonal, a disgrace & I feel terrible to call my-self an american . This country is on a slippery slope . I pray to GOD that the country stands on it’s Liberties and overturns this outragous act and impeach cuomo and the president. Because next thing you know we won’t have our FREEDOM OF SPEACH . Anyone on this site could goto prison just for speaking there mind . All we can do is hope for the best and hope the Supreme Court Overturns the NY SAFE ACT. If not then our Leadership’s have forgotten our History of this great nation . God Bless America .